ASHIM KUMAR BANERJEE, A.C.J. - (1.) THE parties to the above Appeal entered into a contract in which the Appellant was supposed to act as agent of the respondent to help them in giving appropriate advice and act as their agent for which they would claim Retainer fees. The appellant would contend, a sum of Rs. 635583/ - became due and payable on account of retainers fees apart from the bills for reimbursement of the actual cost of travelling and stay of the representatives of the appellants while acting on their behalf, aggregating Rs. 76,40,182/ -. Appellant issued a notice of demand to the respondent. The respondent failed and neglected to pay despite issuing TDS Certificate issued for the said period. The company by their letter dated April 22, 2013 acknowledged the receipt of the letter and expressed their intention to resolve the issue through "amicable resolution". The company's advocate however reserved their right to reply to the notice in future, meaning thereby, in case the dispute could not be resolved amicably they would contest the claim. The fact remains, there was no resolution of dispute, at least, we do not find so. The appellant issued further notice on November 22, 2013. In the said notice the appellant claimed a sum of Rs. 63,05,538/ - only along with a sum of Rs. 4,32,660/ - on account of service tax aggregating to Rs. 67,38,183/ -. The company replied by their letter dated December 26, 2013 to the extent, they would repudiate any liability whatsoever that should be deemed to have been traversed and denied.
(2.) BASED on the aforesaid claim the appellant filed a winding up petition. The respondent contested the proceedings by filing affidavit in opposition. They would deny the entire claim. According to the company some time in February 2010 the Company participated in a joint venture for establishment of oil tankage for Libya Oil Holding Company Limited in Africa, Europe and other countries with the appellant through their sister concern Sea Bed Offshore Private Company Ltd. Due to civil war/revolution in Libya the project did not materialise. The company would deny any transaction with the appellant in India. They would contend, time to time on the advice of Sea Bed money might have been canalised through the appellant, they did not have any independent transaction and/or contract with the appellant. There had been no independent commercial relations between the appellant on one hand and the Company on the other hand.
(3.) BY an order dated March 25, 2014 the learned single Judge dismissed the winding up petition. If we analyze the said decision we would find, according to His Lordship, there was material discrepancy in the pleadings. One statutory notice did not have any mention about the former one. The claim would also have material difference in the notices. The claim made out in the notice dated July 21, 2013 was given a complete go by in the notices dated November 20, 2013. The documents pertaining to travel bills would relate to foreign travel that could not have any nexus with any job within the country. The Email relied upon, would all relate to foreign travel. His Lordship observed, the winding up Court could not adjudicate the claim so made out in the petition for winding up and the same should be relegated to a suit. Hence this appeal by the appellant.;